U.S. v. Regalado

• Decision Date: 04 March 2008
• Docket Number: Docket No. 05-5739-cr.
• Citation: 518 F.3d 143
• Parties: UNITED STATES of America, Appellee, v. Jose REGALADO, Defendant-Appellant.
• Court: U.S. Court of Appeals — Second Circuit

518 F.3d 143

UNITED STATES of America, Appellee, v. Jose REGALADO, Defendant-Appellant.

Docket No. 05-5739-cr.

United States Court of Appeals, Second Circuit.

Argued: December 11, 2007.

Decided: March 4, 2008.

B. Alan Seidler, New York, NY, for Defendant-Appellant.

Stephen A. Miller, Assistant United States Attorney (Michael J. Garcia, United States Attorney, Southern District of New York, on the brief, Daniel A. Braun, Assistant United States Attorney, of counsel), United States Attorney's Office for the Southern District of New York, New York, NY, for Appellee.

Before: JACOBS, Chief Judge, POOLER and SACK, Circuit Judges.

PER CURIAM:

Jose Regalado appeals from the sentence of 262 months' imprisonment imposed by the United States District Court for the Southern District of New York (Leisure, J.), following his May 1, 2003 guilty plea to conspiring to distribute and possess with intent to distribute cocaine base. In light of Kimbrough v. United States, ___ U.S. ___, 128 S.Ct. 558, 169 L.Ed.2d 481 (2007), we are unable to discern whether the district court would have imposed a non-Guidelines sentence had it been aware that "the cocaine Guidelines, like all other Guidelines, are advisory only," and that it therefore had discretion to deviate from the Guidelines where necessary to serve the objectives of sentencing under 18 U.S.C. § 3553(a). Id. at 564, 575. We remand the case to the district court for further proceedings necessary to determine whether resentencing is required.¹

BACKGROUND

Regalado pleaded guilty to conspiring to distribute and possess with intent to distribute cocaine base in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(A). At sentencing, the district court determined that Regalado distributed more than 1.5 kilograms of cocaine base, which resulted in a base offense level of 38. See U.S.S.G. § 2D1.1(c)(1) (2004). After a four-level enhancement for Regalado's leadership role, see § 3B1.1(a), and a three-level reduction for acceptance of responsibility, see § 3E1.1(a) and (b), the resulting sentencing range (at criminal history category I) was 262-327 months. Regalado unsuccessfully sought a downward departure based on extraordinary family circumstances. However, he did not ask the district court to deviate from the Guidelines on the ground that the base offense levels for crack cocaine fail to serve the objectives of sentencing under § 3553(a). Judge Leisure sentenced Regalado principally to a term of 262 months' imprisonment, the bottom of the Guidelines range.

Regalado appealed, and we remanded the case for further proceedings pursuant to United States v. Crosby, 397 F.3d 103 (2d Cir.2005). On remand, the government argued that the original Guidelines sentence was reasonable and should not be disturbed. Regalado's Crosby submission requested leniency, but made no argument bearing on the district court's discretion to deviate from the sentencing ranges for crack cocaine offenses. The district court reviewed its original Guidelines calculation, gave renewed consideration to the 18 U.S.C. § 3553(a) factors, and discussed and responded to the parties' Crosby submissions. It then concluded that it would not have imposed a non-trivially different sentence had the Guidelines been advisory rather than mandatory. It therefore declined to resentence Regalado, and this appeal followed.

DISCUSSION

I

The Guidelines' drug quantity table sets base offense levels for crack and powder cocaine offenses. See U.S.S.G § 2D1.1. In Kimbrough v. United States, ___ U.S. ___, 128 S.Ct. 558, 169 L.Ed.2d 481 (2007), the Supreme Court held that "the cocaine Guidelines, like all other Guidelines, are advisory only." Id. at 564. Although a sentencing judge must "give respectful consideration to the Guidelines" among "the array of factors warranting consideration," the judge also has discretion to determine that "in the particular case, a within-Guidelines sentence is `greater than necessary' to serve the objectives of sentencing." Id. at 564, 570 (citing 18 U.S.C. § 3553(a)). "In making that determination, the judge may consider the disparity between the Guidelines' treatment of crack and powder cocaine offenses," so long as the court does not "purport to establish a ratio of its own." Kimbrough, 128 S.Ct. at 564, 575. Kimbrough thus emphasized the broad discretion of a district court "`to tailor [a] sentence in light of other statutory concerns.'" Id. at 570 (quoting United States v. Booker, 543 U.S. 220, 245-46, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005)).

In our review, we owe deference to that discretion. Kimbrough, 128 S.Ct. at 576 ("The ultimate question in Kimbrough's case is . . . `whether the District Judge abused his discretion in determining that the § 3553(a) factors supported a sentence of [15 years] and justified a substantial deviation from the Guidelines range.'") (quoting Gall v. United States, ___ U.S. ___, 128 S.Ct. 586, 600, 169 L.Ed.2d 445 (2007) (alteration in original)). As the Supreme Court recently explained in Gall v. United States, "the appellate court must review the sentence under an abuse-of-discretion standard." 128 S.Ct. at 597. First, we "ensure that the district court committed no significant procedural error," such as "treating the Guidelines as mandatory. . . ." Id. Next, we review the substantive reasonableness of the sentence for abuse of discretion. Id. Such review should "take into account the totality of the circumstances, including the extent of any variance from the Guidelines range. . . . It may consider the extent of the deviation, but must give due deference to the district court's decision that the § 3553(a) factors, on a whole, justify the extent of the variance." Id. Furthermore, we may not reverse the district court simply because we would have imposed a different sentence. Id.

This guidance and direction from the Supreme Court confirms the broad deference that this Circuit has afforded the sentencing discretion of the district courts. See, e.g., United States v. Fernandez, 443 F.3d 19, 27 (2d Cir.2006); United States v. Crosby, 397 F.3d 103, 112-14 (2d Cir.2005); United States v. Fleming, 397 F.3d 95, 100 (2d Cir.2005). However, until Kimbrough and Gall, this Circuit tended to discourage district courts from deviating from the crack cocaine Guidelines. Our opinion in United States v. Castillo, 460 F.3d 337 (2d Cir.2006), may have been over-read or misread to inhibit any deviation. District courts may also have been inhibited from exercising their full discretion by the fact that the Sentencing Commission borrowed the 100-to-1 Guidelines ratio from the mandatory minimums for drug offenses decreed by Congress. Id. at 567 (explaining origin of Guidelines crack to powder ratio). Therefore, when a district court sentenced a defendant for a crack cocaine offense before Kimbrough, there was an unacceptable likelihood of error; certainly, the court acted under the influence of a widespread assumption that is now known to be erroneous. Where the defendant failed to argue for such a deviation from the Guidelines range before the sentencing court, it is impossible to know, ex post, whether the court would have exercised its discretion to mitigate the sentencing range produced by the 100-to-1 disparity.

In this situation, we review for plain error. "To demonstrate plain error, a defendant must show (1) error, (2) that is plain at the time of appellate review, and (3) that affects substantial rights. Where these conditions are met, we have the discretion to notice a forfeited error if (4) it seriously affects the fairness, integrity, or public reputation of judicial proceedings." United States v. Quinones, 511 F.3d 289, 316 (2d Cir.2007) (citing United States v. Olano, 507 U.S. 725, 732, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993); United States v. Rybicki, 354 F.3d 124, 129 (2d Cir.2003) (en banc); United States v. Thomas, 274 F.3d 655, 667 (2d Cir.2001) (en banc)). Since the district court was, quite understandably, unaware of (or at least insecure as to) its discretion to consider that the 100-to-1 ratio might result in a sentence greater than necessary, there was an unacceptable likelihood of error. While the risk of such error in crack sentences imposed between Booker and Castillo is not so high as to invariably satisfy the first step of plain error analysis, it is sufficiently real to merit identification in individual cases. As we have held, "in the sentencing context there are circumstances that permit us to relax the otherwise rigorous standards of plain error review to correct sentencing errors." United States v. Sofsky, 287 F.3d 122, 125 (2d Cir.2002). Such relaxation is appropriate here because a sizable portion of post-Booker, pre-Castillo cases where error is identified will also satisfy the third and fourth plain error factors given the judiciary's long-standing concerns about the severity of the crack Guidelines. See, e.g., United States v. Moore, 54 F.3d 92, 99, 102 (2d Cir.1995) (rejecting equal protection challenge to crack Guidelines but commenting that "[t]he statistical evidence of disparate impact and several questionable passages in the legislative record are discomfiting" and that "Moore's arguments raise troublesome questions about the fairness of the crack cocaine sentencing policy"); United States v. Singleterry, 29 F.3d 733, 741 (1st Cir.1994) ("Although Singleterry has not established a constitutional violation, he has raised important questions about the efficacy and fairness of our current sentencing policies for offenses involving cocaine substances."). The unusual circumstances surrounding application of the crack Guidelines in the Circuit after Booker and before Castillo justify a narrow and limited exception to our general rule that sentencing courts are presumed to know and follow the applicable sentencing law. See United States v. Fernandez, 443 F.3d 19, 30 (2d Cir.2006); United States v. Gonzalez, 281 F.3d 38, 42 (2d Cir.2002).

If ...